Monday, January 07, 2008

What RIAA Has Said About Home Taping

There is no substitute for actually reading what people say about issues, although I remain surprised that there are still seem to misreadings of the RIAA’s supplemental brief in the Howell case. After listening to the NPR interview last week with Marc Fisher and Cary Sherman about the Washington Post’s misreading of the Howell complaint, I went out into my back garage where I keep, in no order at all, hundreds of older Congressional committee reports and hearing transcripts. After two trips, I found what I was looking for: the transcript of a Joint Hearing in 1987 held by the Senate and House IP subcommittees. The title of the hearing is “Copyright Issues Presented by Digital Audio Tape,” 100th Congress, First Session, April 2, 1987, Senate Serial No. J-100-13, House Serial No. 6. If you get a copy of it, it is well worth reading for the Yogi Berra feeling it gives, especially quips "It's like déjà vu all over again" and “I never said half the things I really said.”

The lead witness was Jason S. Berman, President of the RIAA. (He was followed as RIAA President by Hilary Rosen and then by Cary Sherman. He and Ms. Rosen now have a consulting company.) The hearing was an oversight hearing, meaning there was no bill on the table, but rather an issue, and that was issue was the existential threat allegedly posed by DAT (digital audio tape). Mr. Berman began by testifying “DAT poses the most significant technological threat the American music industry has ever faced.” (page 4). After invoking such a folk devil, there was of course a solution: more rights!: “At the same time it offers a significant opportunity for Congress to craft a timely and uniquely suitable legislative response as we enter what will be the next phase of the home taping problem, a problem that has worsened over the years.” This much is standard fare: the set-up is so ubiquitous that I could draft testimony like this in my sleep.

What interested me was how analog home taping was put forth as an epidemic (or in the current hyped-up environment what would be called a "global pandemic" and "a dagger into the heart of America's future economic security," and how there was no mincing of words that copying of analog tape for personal use was infringing and not fair use. (I am leaving out the numerous, blatant xenophobic attacks on Japanese manufacturers). In written questions sent to Mr. Berman by Senator DeConcini after the hearing, Mr. Berman was asked:

There are two kinds of home taping. Copying copyrighted material for commercial use is clearly illegal, and I will strive as Chairman of this subcommittee to protect copyright holders from piracy. But home taping for personal use is arguably “fair use” under the copyright laws. How does the proposed DAT legislation maintain thus distinction? (Page 36).Here is as much of Mr. Berman’s response as makes sense to reproduce here to avoid any conceivable claim of quoting out of context; I will, moreover, create a pdf of the whole answer Tuesday and send it to those who want it. Bear in mind that he is referring to copying of analog tape by individuals at home for what everyone else would call noncommercial purposes. Here are RIAA’s answers to Senator DeConcini, reproduced in the hearing transcript:

Under Section 106(1) of the copyright law, the copyright holder is granted an exclusive right to reproduce the copyrighted work. There is no statutory exemption that permits “personal” copying merely because it is not commercial. Nothing in the copyright statute distinguished between “personal” copying and commercial copying.…The only conceivable basis for exempting home taping from the provisions of Section 106 would be the fair use doctrine, addressed in Section 107 of the copyright law.[quotes statute]None of these factors, however, justifies the conclusion that home taping of copyrighted sound recordings should be considered a fair use.First, home taping is a commercial use within the meaning of the “fair use” provision despite the fact that the home taper may not charge for his or her copies. [quotes Harper & Row v. Nation].Second, copyrighted works are sold for the purpose of entertainment. The home taper seeks to use the copyrighted work for the same purpose. …Third, home tapers record entire musical collections. Their appropriation of the copyrighted work is total.Fourth, the economic effect of copying on the potential market for the copyrighted work grows is so sever that the defense of fair use cannot be invoked. The studies, the market statistics, and economic analysis of the home taping problem vividly document home taping’s adverse effect on sales of records and prerecorded tapes. The displaced sales, lost because of home taping, cost the industry $1.5 billion annually.…Thus, there is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.(pages 37-39, emphasis in original).Senator DeConcini then asked “Can you cite any case law for the proposition that home audio taping for noncommercial purposes violates the copyright laws?” (Page 39). Mr. Berman answered, “There is no case law on this subject because no recording company has ever asked a court to try and solve a problem that can only be resolved by Congress,” (page 40), but he adds, “Were we to bring a case for infringement against the home taper, we could prevail under existing law.” (Id.) There was a case over home taping though, three years before this, involving audiovisual works, the Sony Betamax case, in which RIAA filed an amicus brief urging a finding of liability. In his answer to Senator DeConcini, Mr. Berman went on to add that if RIAA did bring such a suit, the matter would be back in Congress’s bailiwick.

And 5 years later it was, in the Audio Home Recording Act. Section 1008, added by the AHRA, has this unfortunately drafted language:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.The House Committee report states the matter with a clarity that is regrettably lacking in the statutory language:

“In the case of home taping, the exemption protects all noncommercial copying by consumers of digital and analog recordings,”H.R. 873, 102d Cong., 2d Sess. 24 (1992).

Back to the Washington Post story. Here is the whole passage from the RIAA’s website on the issue, again under the theory that we should read what people actually say:

When It Comes to Copying Music, What’s Okay … And What’s Not:Technology has made digital copying easier than ever. But just because advances in technology make it possible to copy music doesn’t mean it’s legal to do so. Here are tips from some record labels on how to enjoy the music while respecting rights of others in the digital world. Stick with these, and you’ll be doing right by the people who created the music.Internet Copying * It’s okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee. For a list of some authorized sites, click here. * It’s never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. Examples of peer-to-peer systems making unauthorized music available for download include: Kazaa, Grokster, WinMX, LimeWire, Bearshare, Aimster, Morpheus, and Gnutella. * It’s never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems.Copying CDs * It’s okay to copy music onto an analog cassette, but not for commercial purposes. * It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes. * Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as: o The copy is made from an authorized original CD that you legitimately own o The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying. * The owners of copyrighted music have the right to use protection technology to allow or prevent copying. * Remember, it’s never okay to sell or make commercial use of a copy that you make. Are there occasionally exceptions to these rules? Sure. A "garage" or unsigned band might want you to download its own music; but, bands that own their own music are free to make it available legally by licensing it. And, remember that there are lots of authorized sites where music can be downloaded for free. Better to be safe than sorry – don’t assume that downloading or burning is legal just because technology makes it easy to do so. The reference to “special Audio CD-R’s etc., is to the AHRA payment scheme. It is the next example, that outside of the AHRA payment scheme that raises questions. This passage states: “Beyond that, there’s no legal ’right’ to copy the copyrighted music on a CD onto a CD-R.” The italics in the original around “right” presumably prefers to the view that fair use is not a right, but a privilege, although even here one could turn the language around and say copyright owners have no right to prevent a fair use. The other part of the passage – “won’t usually raise concerns” is puzzling because the passage assumes an individual has made a copy from an authorized CD that the individual owns, and he or she has made the copy for personal use. Why “usually” then? When would that specific use not be fair use? It is not sufficient to say there might be different facts that could lead to different results because the hypo has its own facts.

In the NPR interview, a caller asked about transferring an LP to his computer; he was not give a definitive answer that the facts in his specific example was fair use, but he was instead referred to the content owners’ industry site, musicunited.org website. This site has a very long section “Why You Shouldn’t Do It,” but it does have “Copying FAQ’s [sic]”:How do I know what’s legal and what’s not when it comes to copying music?Here’s the bottom line: If you distribute copyrighted music without authorization from the copyright owner, you are breaking the law. (Distribution can mean anything from "sharing" music files on the Internet to burning multiple copies of copyrighted music onto blank CD-Rs.) For more information about what’s okay and what’s not, click here.Is it illegal to upload music onto the Internet even if I don’t charge for it?Yes, if the music is protected by copyright and you don’t have the copyright holder’s permission. U.S. copyright law prohibits the unauthorized distribution of copyrighted creative work whether or not you charge money for it.What will happen to me if I get caught illegally copying or distributing copyrighted music?Under federal law, first-time offenders who commit copyright violations that involve digital recordings can face criminal penalties of as much as five years in prison and/or $250,000 in fines. You could also be sued by the copyright holder in civil court, which could cost you hundreds of thousands of dollars more in damages and legal fees. For more information about legal penalties, click here.Is downloading and uploading music really stealing?If it’s done without the permission of the copyright holder, it’s legally no different than walking into a music store, stuffing a CD into your pocket, and walking out without paying for it.Are there any sites where it’s legal to download music?There are plenty of Internet sites that offer music for legal downloading. To check them out, click here.If all I do is download music files, am I still breaking the law?Yes, if the person or network you’re downloading from doesn’t have the copyright holder’s permission.Can I use E-mail or instant messenger services to exchange songs with my friends?The use of e-mail or instant messenger services to exchange songs is governed by the same copyright laws that apply to any other form of reproduction or distribution.Am I breaking the law if I upload or download copyrighted music and leave it on my hard drive for less than 24 hours?Reproducing or distributing copyrighted music without the permission of the copyright holder is against the law regardless of how long you hold on to the music.Is it legal to post music that is no longer "in print"?Copyrights don’t last forever. Eventually all creative work becomes part of what is called the public domain—at which point anyone and everyone is free to copy and distribute it as they please. But just because a particular recording has gone out of print doesn’t mean its copyright has lapsed. If it hasn’t, then you need to get permission from the copyright holder before you post it.What if I upload or download music to or from a server that is based outside of the U.S.?If you are in the United States, U.S. law applies to you regardless of where the server may be located.What if I download or upload poor-quality recordings?The law prohibits unauthorized copying and/or distribution of digital recordings that are recognizable copies of copyrighted work. The quality of the recordings doesn’t matter.How do I know if something is copyrighted?When you buy music legally, there is usually a copyright mark somewhere on the product. Stolen music generally doesn’t bear a copyright mark or warning. Either way, the copyright law still applies. A copyrighted creative work does not have to be marked as such to be protected by law.Doesn’t the First Amendment give me the right to download and upload anything I want, including copyrighted music?The answer is, no, it does not. What copyright law prohibits is theft, not free expression.Doesn’t the "Fair Use doctrine" give me the right to download and upload copies of music I’ve purchased?No, it doesn’t. In certain instances, the use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship or research might not constitute infringement, depending on (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work has a whole, and (4) the effect of the use on the potential market for or value of the copyrighted work. However, courts have rejected the notion that uploading and downloading copyrighted sound recordings without permission constitutes the "fair use."Besides the record companies, who does copying music actually hurt?First and foremost, illegal copying hurts the songwriters and recording artists who make the music. These people depend on the royalties they get from the authorized sales of their recordings to make a living. Many recording artists receive most of their income from royalties. For many young artists, income from royalties means survival. In the end, illegal downloading guarantees that artists won’t be fully rewarded for their hard work and devotion to the craft.Are you against "peer-to-peer" services?We are not against P2P services. We are against people who steal and illegally distribute copyrighted music that doesn’t belong to them. The music industry has been a major beneficiary of new technology (from wax cylinders to vinyl to LPs to CDs), and the current technological developments are no exception. But let's face it, even great technology can be abused. And that's what the industry is confronting right now. We have to figure out how to take advantage of the great new delivery systems that the Internet offers, without being seriously damaged by uncontrolled piracy. P2P in particular can really be a fabulous technology - but right now it's doing far more harm than good. (So surveys show.)What is your position on MP3s?We think MP3 technology is a great thing—as long as it’s used legally and properly.

There is nothing in this, absolutely nothing, that could have answered the listener’s question, or indeed many questions at all. The FAQs are very long on polemics, and virtually non-existent on practical guidance. While it may have made whoever wrote them feel like they had accomplished something, what that something is can’t be identified by me. And that gets me back to my central point: we should fairly and accurately portray what RIAA and anyone else actually says, and not distort things for partisan or other purposes. At the same time, it must also be stated that RIAA has said precious little in any of the material immediately above to give simple, straightforward answers; the answers are hedged or qualified, and it appears the RIAA doesn’t want to ever concede that personal use is lawful – as compared to “usually won’t raise concerns.” What does that mean? If I ask a cop whether I can drive 35 miles per hour on a particular road with no speed sign, is it sufficient for him to say, “well that usually won’t raise concerns?”

The only definitive answers to home taping were Jay Berman’s in 1987:

1. ”[T]here is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.”2. “Were we to bring a case for infringement against the home taper, we could prevail under existing law.”It may be that these very clear sentiments do not reflect RIAA’s current thinking, but one wouldn’t be able to tell from the current material. So here’s a proposed solution: let’s give honest people what they want, clear guidance; instead of wasting Congress’s time on gluttonous issues like getting even greater statutory damage awards, why not spend that time drafting a personal use exemption – not fair use guidelines, but a real exemption. One that will exempt all home copying and use by individuals off of lawfully purchased copies, including space and format shifting, for noncommercial purposes. Such a law would earn copyright owners (and Congress) tremendous public applause, while those who are honest could forget about copyright law, finally. Those who are engaged in the truly problematic activities, like massive unauthorized distribution of works would be isolated, legally and in the public’s eyes. What I think is unacceptable is the status quo, one that deliberately keeps things vague and that lumps honest people who want to engage in home, personal, noncommercial uses in with those who deserve to be called pirates. If copyright owners wanted to change they status quo, they could, so why are they not? Drafting difficulties is not an answer: As copyright counsel to the House, I drafted, along with copyright owners, numerous far more complicated provisions. Nor is there any question that Congress is the only vehicle for achieving the necessary clarity. Sometimes things unsaid or not done also speak loudly and when that is the case it is hard to complain there is a misunderstanding about what is meant.

32 comments:

Jessica Litman
said...

I think it would be useful for you to draft and post such a provision, for discussion purposes, so that people working on current legislation would have a starting point for efforts to include something of the sort you describe, or at least to begin a debate about why it should or should not be included.

Yes, if only I were paid what Cary Sherman has been paid, I would get right on it, or more likely, retire, but eight years of government service, five years as a law professor, and 6 year old twins forces me to work a day job and update a treatise, and for a good 20 more years. It would be a good exercise, though, so I'll give it a shot but probably not right away.

Notwithstanding Sections 106 and 106A, the following are not infringements of any copyrighted work lawfully purchased by any person:

(1) The reproduction of any copyrighted work in any form or medium wherever located for a person's non-commercial purposes;

(2) The public display or performance of any copyrighted work or lawful reproduction thereof for a person's non-commercial purposes;

(3) The reproduction, performance, display, or distribution of any properly attributed copyrighted work for a person's educational purposes; and

(4) The reproduction, performance, display or distribution of new works based on themes, characters, or locations for a person's non-commercial or educational purposes.

A purpose is presumed to be non-commercial where the purpose is not for profit or does not diminish the market for the original copyrighted work to third parties.

A purpose is presumed to be educational where the reproduction, performance, display or distribution is in the ordinary course of a person's educational enterprise, whether such enterprise is for profit or not for profit.

Any entity engaged in a non-commercial or commercial enterprise to facilitate a person's rights under this section is not a direct or indirect infringer.

The presumptions of this section can be overcome only upon a showing of substantial evidence.

A copyright owner will pay all costs and reasonable attorney's fees incurred by an accused infringer successfully raising any right hereunder. Any threatened or actual enforcement of a copyright contrary to this section shall be deemed copyright misuse, and the copyright owner shall thereafter be enjoined from enforcement of such copyright.

"Is downloading and uploading music really stealing?If it’s done without the permission of the copyright holder, it’s legally no different than walking into a music store, stuffing a CD into your pocket, and walking out without paying for it."

-----

Hmm. . . I'm not a criminal lawyer by any stretch of the imagination, but I would have to say: yes, shoplifting and file sharing without permission are quite a bit different legally.

The RIAA deserves some empathy. Every industry that faces technological obsolescence has a sense of powerlessness, and a desperation to do something...anything...to escape from its state of helplessness.

In the case of the recording industry, the solution ultimately has to be cultural --- people will either voluntarily elect to respect artists' rights by paying for their products or will take us to the as-yet unknown place in which capital has ceased to regard investments in sound recording copyrights as likely to be profitable.

In the meantime, lobbyists will twist and turn, promoting the fantasy of a legislative solution.

§107A. Notwithstanding the provisions of section 106 and 106(A) the personal use of a copyrighted work is not an infringement of copyright.

§101 “Personal use” shall consist of the use of an authorized copy by the authorized copy owner for one or more of the following purposes: (1) transferring, by any method now known or later developed, the copyrighted work from one tangible medium of expression to another tangible medium of expression, known or later developed; (2) distributing, by any method now known or later developed, a copy of the authorized copy to members of the authorized copy owner’s household; or (3) performing or displaying, by any method now known or later developed, the copyrighted work for member’s of the authorized copy owner’s household.

Any thoughts from our experts as to the best form for such an amendment, i.e. a section 107A or something else?

Thanks for starting a thread on this! And thanks to yftl for taking the first crack at it!

Vincent, there is another aspect to this: the use of rhetoric to shape both culture and law. To say that I own something and that others who use it without my permission are thieves is both a cultural and legal statement. The current failure to clearly distinguish legally between personal, noncommercial home taping and massive P2P file sharing, results, deliberately or not, in a situation where there is both cultural and legal uncertainty. I think that is unhealthy and should be corrected.

§107A. Notwithstanding the provisions of section 106 and 106(A) the personal use of a copyrighted work is not an infringement of copyright.

§101 “Personal use” shall consist of the use of an authorized copy by the authorized copy owner for one or more of the following purposes: (1) transferring, by any method now known or later developed, the copyrighted work from one tangible medium of expression to another tangible medium of expression, known or later developed; (2) distributing, by any method now known or later developed, a copy of the authorized copy to members of the authorized copy owner’s household; or (3) performing or displaying, by any method now known or later developed, the copyrighted work for member’s of the authorized copy owner’s household.

Any thoughts from our experts as to the best form for such an amendment, i.e. a section 107A or something else?

Thanks for starting a thread on this! And thanks to yftl for taking the first crack at it!

Here's my suggestion. It's rather broad, but I think that it's the only reasonable way to go in light of the prevailing cultural norms. The language likely needs a bit of work, but I hope that it gets the idea across. Additionally, I do not think that any of the provisions here should be proposed as 107A. First, it's inelegant. Second, these exceptions really don't have anything more to do with fair use than first sale does. This is sui generis, really.

Anyway:

(a) No act by a natural person not for commercial purposes or private financial gain shall be considered an infringement of copyright or a violation of any other right under this Title.

(b) For the purposes of this section, commercial purposes or private financial gain--(1) include, but are not limited to, the copying, preparation of derivatives, distribution, public performance or display, of copyrighted works--(A) where there is receipt, or expectation of receipt, of anything of value, in exchange for any works; or(B) accompanied by advertising; and(2) do not include, the copying, preparation of derivatives, distribution, public performance or display, of copyrighted works in the absence of the receipt or expectation of receipt, of anything of value, in exchange for any works.

The problem is that lawyers only see legal issues when the reality is that lawyers and politicians have criminalized a significant cross section of the American public to the point where they say to themselves that the law is wrong. It's entirely absurd.

The American populace no longer has an advocate. Only corporations who do extensive lobbying, contributions, etc. get the legislation that they want and the public gets screwed.

So it's hardly surprising that when a newspaper columnist actually points out that people are screwing themselves by ripping the CD's that they already own in combination with software that most users don't comprehend the implications of installing become punching bags for that bastion of American corporate responsibility, the RIAA, a honored intellectual property lawyer such as yourself is critical because he is so concerned with their inaccuracy.

Personally, I don't think that you are at all interested in advancing the cause for the American public but rather weigh in because it fits your charade as contributing to a solution...which clearly, you aren't.

Craig, I disagree with everything you said. I actually proposed a solution, and one that is not only very pro-consumer, but one designed to eliminate the very atmosphere of illegality that we both find so troubling.

On your point about lawyers, if the issue is whether something is lawful, then obviously one has to talk about law, not whether the price of gas is too high. And I am far from the only one to complain about the Post's error; Tech Dirt, Slashdot and other very anti-RIAA sites did too, so why didn't you complain about them: are they tools of American corporations to you? Being truthful should be a concern to everyone. The Post reporter could have made the exact same points he wanted while still getting the story right; but he didn't, and neither did you in your comment. Its important to be intellectually honest and you have a long way to go in getting there.

In Polish copyright law the so-called "allowed personal use" is permissible. To be precise, in Polish law the act which provides for the use is not called "Copyright Act", but in fact "Author’s Rights and Related Rights Act" (Ustawa o prawie autorskim i prawach pokrewnych), usually but imprecisely (according to many factors) translated into "Copyright Act".

It shall be permissible, without the consent of the creator, to make personal use, free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.2. Personal or private use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

In this way generally:- downloading and possesing (sic!) copyrighted works (except computer software) is legal,- sharing (making available for someone else) is illegal,- private copying - for personal use (except computer software, but again, you can make one backup copy) is legal.

The biggest legislative failing of the current fair use statute is the risk of using it. There is a huge downside to going to trial and raising the fair use defense, but there's no downside in trying to abridge that right.

The same thing comes up in most of the proposals here too. It seems to me that any exceptions that impose a significant burden of proof on an individual to prove the exception and without penalty to the putative enforcer for attempting to abridge those rights is doomed to the same failure as fair use.

If we value fair use, we should not allow copyright owners to attempt to enforce their rights contrary to fair use / personal use.

YFTL, because fair use is ad hoc and really post hoc (you don't know it is fair use until the judge/jury says it is), an exemption for personal use is a much better way to go: if you fit within the type of conduct Congress wants to permit, that's it, no liability. The trick with exemptions is to carefully draft who is in and who is out, and that's why it takes time to figure out. There are a number of exemptions in the Act: Sections 108 (library photocopying), 109 (first sale), 110 (noncommercial performances), etc.

per William Patry...Craig, I disagree with everything you said. I actually proposed a solution, and one that is not only very pro-consumer, but one designed to eliminate the very atmosphere of illegality that we both find so troubling.

I'm sorry William but when all you have is a hammer, everything looks like a nail.

When a technology is so obtuse that even the FTC says that the average user is unaware that he is doing something illegal, the technology has invented an entire class of criminals which is randomly punishing people.

I am in technology and I understand that the industry claims copyright restrictions and therefore you won't find the programs like kazaa or limewire on my computers and I have purchased well over 600 CD's and have no interest in trading songs.

I am not a lawyer, have never read through copyright law and would never presume to be knowledgeable about copyright law but it's evident to me that if the law is so fuzzy that the legal community cannot clearly define what the boundaries are then it is the legal community that must shoulder the blame for this morass. The sad fact is that the average citizen has no more ability to discern what their legal options are with CD's that they have purchased than they have nailing jello to the wall.

I note with amusement that you referred to Dennis DeConcini as someone, while in Congress who was concerned with the music industry and their efforts to muddy the water concerning the users' rights because it is Dennis DeConcini's firm that is representing RIAA in Atlantic v. Howell.

I vaguely recall some concept of lawyers believing that the fight for the little guy was the one battle worth winning.

Craig, all of us have the obligation to use hammers and nails honestly. For example, the reference to DeConcini was merely quoting questions he posed. How quoting someone is endorsing them or anything they say is a mystery.

I don't think you and I disagree at all in how, ultimately, the problem should be resolved. I think there should be a clear statutory exemption for home taping, and it is only Congress that legislates such laws.

So, the RIAA's position in 1987 was that home copying for personal use was "commercial," presumably because the alternative was a commercial act -- buying another copy. Or, as Jack Valenti said, buy another copy if you want a backup (he was probably more eloquent.)

But, then the AHRA comes along and protects "noncommercial" copying. Of course, under the RIAA's definition of "commercial," this doesn't buy you much.

This definition of commercial, however, is so broad that nearly ever use would be commercial. After all, if I wanted to use a copyrighted work, I could (nearly) always buy a license to use it. The only time that the use stops being commercial is if the copyright owner outright refuses to license for that use.

Under the RIAA's definition, then, both fair use and the AHRA defense are almost completely foreclosed.

I'm sorry, I didn't mean to impugn that you were endorsing Dennis DeConcini by my reference, I guess I have made you a bit defensive (probably not a bad thing altogether though).

Here's my issue in a nutshell.

For the purpose of what Mark Fisher accomplished via his article, he completely hit the nail on the head. Some 4 days after publication of his article, during whatever you want to call it that happened on NPR, it became clear that users simply cannot assume that if they possess a digital copy of their store bought CD's on their hard drive to be a legal. Cary Sherman had several opportunities to provide clarity, as you pointed out, and refused to do so. Once can only conclude that this is lack of clarity is deliberate.

I don't know Mark Fisher's background and it seemed evident that he wasn't capable of advocating the legal argument he appeared to be making but the story wasn't the legal argument itself, but rather, the notion that there is a slippery slope to be navigated.

Specifically, plaintiff in their pleading does not delineate which part of the equation constituted the legal act (possessing the digital copies or them being in a shared folder) and what made it illegal, or to add further confusion, "unauthorized". Clearly plaintiff is unconcerned as to how they got there. Plaintiff was aware that kazaa is more than capable of sharing music files without defendant's knowledge FTC Report on Peer to Peer File Sharing Technlogy which RIAA had comments embedded. Page 8 has specific references but I would guess that you are already familiar with this document.

Anyway, my point simply is...a newspaper reporter, like myself has no chance arguing the legal merits of a technical legal case but the public that reads those columns was clearly not ill served by the entire exchange. It was healthy, informative.

I think that this issue on a larger scale is reflected by the wave that Barack Obama is currently riding. The American public is getting sick and tired of the same people coming up with the same confused solutions to the same problems (not that I am suggesting that I believe that Barack Obama actually will change that). The fact is, the dialog is jaded, couched in buzzwords that reflect retroactive thinking and the truth is, there is a very big problem which needs to be solved.

Craig, I don't think it is being defensive to object when you say,falsely and in an ad hominem way, as you did:

"Personally, I don't think that you are at all interested in advancing the cause for the American public but rather weigh in because it fits your charade as contributing to a solution...which clearly, you aren't."

What could you possibly base that on? That had nothing to do within your inability to parse legal arguments; you don't know me personally, and you know nothing about how I have comported myself in being a copyright lawyer for over 25 years. Do you think I went to all the trouble I did in researching the issue and then writing it, and offering a solution, because I was engaged in a charade? And what's the charade, offering a concrete solution, one used in many European countries? What's your non-charade solution, then?

You seem to think that the only way people will address important issues is if others' views are serially misstated. I hope other journalists don't share your approach.

Currently the practice is not legal (the equivalent fair use clauses in the UK are outdated and so the wording is impossible to bend to fit as with the USA). Consultation runs until April and already the music industry bodies are wringing their hands and weeping theatrically...

William, I think you feel the same sense of anger at me that I feel for the entire industry that has caused this predicament. I see that as a good thing. I see all the players, regardless of whether they advocate for plaintiff or defendants pretty much as enablers for the process.

I guess what really set me off was the comment that you made, the second on the list...Yes, if only I were paid what Cary Sherman has been paid, I would get right on it, or more likely, retire...

Perhaps you just didn't realize the impact that someone would take away from those sentiments.

In Howell, I see a guy that was originally offered a $6,000 out of court settlement with RIAA. He refused and was ordered to pay $40,000 from original summary judgment order which was vacated since he figured out that he was in deep doodoo and made a meager defense. I doubt that the outcome will change after the current round but that's yet to be seen.

I was aghast seeing you couch your participation in this obvious inequity from the view of your wallet.

On the Cary Sherman reference, I think you completely missed the tongue in cheek nature of that, and once again seriously misstate things.

I never said I wouldn't draft something unless I was being paid to do so; clearly I would not be paid and wasn't asking to be paid for it. My blog, for example, is advertising free, and is hosted by Blogger, which if I did run ads, would be run through my employer's Ad program. But I keep a complete separation of my personal thoughts from my work for my employer, even when, as here, I could earn money from doing so. And, 5 days a week, I spend a lot of time researching material and putting it online for free for so that issues can be discussed in an intelligent way. That is what I am interested in enabling. I have no idea what if anything you enable.

On e-mail lists, one knows to use an emoticon to ensure that no one mistakes a tongue in cheek comment. Sarcasm often fails without a wink or intonation that clarifies the intent.

I'm just a passerby, can see that you are a serious sort, talking about serious topics so I didn't possess the secret decoder ring to your tongue in cheek comment.

As for misstatements, I wonder if my rage towards this entire drama (RIAA vs the American public) is all that unusual, it's just been my experience that the good guys wearing white hats and the bad guys wearing black hats for easy identification seems so lost on me. The lawyers that take the cases for the defendants likely make considerably less than the other side, argue the right motions (hopefully) but at the end of the day, they go home and do their thing but for the defendants, it's entirely personal. How many of them will end up having to declare bankruptcy? How many of them will have to sell of their cars, houses, belongings, etc?

If everyone is afraid that the RIAA will litigate against them for putting content from a CD onto their computer or ipod (shared or not) what will the result be? In other words, why this story from Fisher, why the widespread media attention, and why now? After all, the slippery slope argument and RIAA lawsuits have been around for awhile...

Well, I think other established parties have a stake in initiating this discourse. People who own CDs but fear litigation from the RIAA will go to iTunes and buy the album or tracks that they already own in CD format rather than uploading their collection wholesale. So the result will be sales for iTunes that otherwise are lost in translation from one medium to another. Furthermore, the CD is removed from the transaction.

The RIAA must understand this, or they would not have retracted the statements made my the Sony rep in Capitol v. Thomas and would not have gone on NPR (of all places) to debate a guy like Fisher, who in this instance, is wrong. The RIAA does not want people to be afraid to buy CDs and afraid they can only use them in a CD player. Even if RIAA members get a 15% or 20% cut from iTunes, if the members lose the relevancy of the CD they sell as a means of content distribution, it loses everything.

While all of the attention on the personal copying issue has been focused on RIIA’s view of the matter, what about the position of movie studios? On January 18th, the New York Times’ “Bits” section had a discussion of sorts between Rick Cotton, GC of NBC/Universal, and Professor Tim Wu. http://bits.blogs.nytimes.com/2008/01/18/bits-debate-on-the-rights-of-readers-and-viewers/#more-843

Here are Mr. Cotton’s views:

"Rick Cotton: Once again I am going to separate the legal answer from the consumer proposition. Simply put, copying a DVD is not fair use, as a legal matter. Never has been. But that is not and should not be the end of the discussion. We have to ask ourselves what’s a “fair” and attractive offer for consumers?

"If consumers want multiple or backup copies, content companies have an obvious incentive to meet that demand. In the physical world, that is not easy. To permit easy decryption unfortunately opens the flood gates to unlimited digital copying and distribution. NBCU, like many content companies, does have policies in place to replace at a discount DVDs that wear out. But we recognize that is awkward and far from ideal.

"But, looking forward, one of the exciting characteristics of the new, digital world is that technology will allow us greater flexibility to respond to consumer desires. In some of our new digital download services, we are looking at creating a “three-copy” model that empowers consumers to have files that can be loaded into various devices. In addition, we’re offering viewers download-to-own movies on Amazon Unbox and via iTunes. They can choose to download commercial free episodes of our TV shows or watch free, streaming, ad-supported programs on our websites. We’ve offered fans material from “Battlestar Galactica” and “The Office” to create mashups. And we expect to expand those offerings both on our websites and on Hulu.com.

"We would also hope for cooperation from the consumer electronics industry to create a secure, managed copy capability on DVD players of the future enabling encrypted copies for personal use. Digital technology holds the key to new capabilities that will create a secure copying functionality in the home while protecting digital content from unwarranted piracy."

While Mr. Cotton’s answer is admirably clear (like Jay Berman of RIAA’s before Congress) is there legally something dispositively different about DVDs from, say the home taping permitted in Sony? Or, copying a VHS for personal use? Right before the holidays, my twins wanted the Star Wars trilogy; I looked in all the major retail outlets in NYC, but not a copy was to be found; I did find a used one at a small store in Grand Central Terminal, and was assured it was as good as new. (I inspected the discs and they were clean). But after a few viewings, they deteriorated, and Episode IV became unwatchable. Having more time, I ordered a new set from amazon.com. So what should I do now: make back-up copies, or pay, at a discounted rate for a third set of copies when these wear out, assuming the studio (Fox) has such a policy?

Thank you for your blog, I work in education and unfortunately my best source of information about the RIAA's Copyright Crusades is normally news media. The old satirical Onion article "I have an Ipod--IN MY MIND" http://www.theonion.com/content/node/33642 suddenly seems disconcerting, when simple everyday actions can lead to persecution of the individual and the intrusion and fear seems limitless. What I do not understand is why people are putting up with this. In a program evaluation graduate course I'm currently taking a student asked if keeping the results of a privately funded program evaluation was illegal. The professor, trying to appear fair-minded, didn't answer her (Much like our recording industry friends) and instead explained that being open about one's performance raises reputation. I pointedly stated that the results of a survey is one's property and there's no need to disclose every minor negative or problem, doing so would likely destroy a good company....My response led to a general lambasting of myself best paraphrased as "without rules to force people to do the right thing, everyone will just lie." It feels like the RIAA situation is the same. The majority of our country is not tech savvy or even aware of the progression of these events, so public attitude is the result of a simple distillation from headlines and conversations and those headlines are vapid and the conversations uninformed, with the record labels doing a better job getting their tale across than the knowledgable journalists. Hopefully the existence of more media like this bog will change that.

I have thoroughly enjoyed this blog, and specifically, the dialogue between "Craig" and "William". I'm not going to take sides, but offer a thought for consideration. America's economy is struggling in many areas, especially in media as of late. Yes, technology enables the youth of today to obtain movies, music, programs, etc. illegally. Why do they do it? Its free, and everyone is doing it, its like telling them they cant take candy out of the jar, but also telling them the chances of them getting in trouble are slim. Everyone is doing it, how is the government going to punish them? Put the next generation of the workforce into prison, or fine them $250,000, when they are already too far in debt? Consider this, even though copying or file-sharing is illegal, its one of the biggest ways to advertise or popularize an item, song, program, or movie. Also, why does everyone have an ipod or mp3 player? Because nobody wants to listen to the same artist for an hour on a CD. Sure, the first couple times around are nice, but then it becomes annoying and repetitive. Also, the musicians and artists of today only have one or two "hit" tracks worth listening to on the CD. So instead of buying the whole album for the two songs, it is a lot easier and CHEAPER, to get on the computer, and download what you want, and skip the rest of the mediocre tracks. This way, you can have a wide range of artists, albums, and genres on your mp3 player, and you dont even have to take 10 seconds to change CDs to find that one "hit" song you want to hear right at that moment. Also, I hate CDs with a passion because of how flimsy and vulnerable they are to damage. I dont have time to pamper my music, and next thing you know, my $20.00 CD is worthless in a couple hours, because its already skipping. I believe, if copyright laws were enforced more strictly, and the public was scared enough into submission, mp3 player sales would dwindle or fall, musicians would lose popularity, nobody could afford to buy all the CDs they wanted, and everyone would move onto the next thing. Piracy, theft, and abuse has been around since the second man was introduced to the earth. As soon as someone has something nice, everybody else wants it, and will even take great risks to get it.

Also, I smile every time somebody talks about "making a backup copy". Lets not be naive, who serriously has the time, room, and patience to make a copy of every DVD or CD in their collection. I dont even have time to backup important documents on my personal computer. Back in high school, I would sometimes ask if i could bring a DVD into class and illustrate a point through a movie or clip, and the teacher would turn me down because of "legalities". These "legalities" kept me from clearly proving a point or helping my classmates learn something. So I had to restort to verbally explaining or using another method. Licensing creates many issues in the world of education. Does anyone here have any idea how many high school and college students carry $800.00+ programs on their laptops using the school's licensing rights? How much of that is legal? Also, does anyone realise how much hacking, file sharing, and copying has made the youth of today so computer litterate? If it wasn'tt for MySpace for example, none of the kids would know about "code" or "html". How many of the images they use are illegally copied or used? Truthfully, I believe this "problem" of copyright infringement has made Americans who we are, what we know, and how we know it. Forgive the structure, grammer, and flow, but I just had to hurriedly leave a couple thoughts for you to consider.

And forgive me Willaim, but the quote "...when all you have is a hammer, everything looks like a nail..." simply killed me. Even if it isn't best utilized in this blog, it is still a GREAT quote to me.

About Me

This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.